Citation Nr: 21040746 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 14-12 202 DATE: July 6, 2021 ORDER Service connection for a back disability is denied. Service connection for a neck disability is denied. Service connection for a bilateral neurologic disability of the lower extremities is denied. Service connection for a bilateral neurologic disability of upper extremities is denied. Service connection for a circulatory system disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a low back disability that began during, or was otherwise related to, a qualifying period of active service. 2. The preponderance of the evidence is against finding that the Veteran has a neck disability that began during, or was otherwise related to, a qualifying period of active service. 3. The preponderance of the evidence is against finding that the Veteran has a bilateral neurologic disability of the lower extremities that began during, or was otherwise related to, a qualifying period of active service. 4. The preponderance of the evidence is against finding that the Veteran has a bilateral neurologic disability of upper extremities that began during, or was otherwise related to, a qualifying period of active service. 5. The preponderance of the evidence is against finding that the Veteran has a circulatory system disability that began during, or was otherwise related to, a qualifying period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 101(21), (24), 1110, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 101(21), (24), 1110, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.303. 3. The criteria for service connection for a bilateral neurologic disability of the lower extremities have not been met. 38 U.S.C. §§ 101(21), (24), 1110, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.303. 4. The criteria for service connection for a bilateral neurologic disability of upper extremities have not been met. 38 U.S.C. §§ 101(21), (24), 1110, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.303. 5. The criteria for service connection for a circulatory system disability have not been met. 38 U.S.C. §§ 101(21), (24), 1110, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the Puerto Rico Army National Guard (PRARNG) from May 1961 to March 1971 and from August 1976 to June 1982. He had a period of active duty for training (ACDUTRA) with the U.S. Army National Guard from August 1961 to February 1962. In October 2015 and in January 2018, the Board remanded the matters on appeal for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. Active military, naval, or air service includes any period of active duty, or any period of ACDUTRA (active duty for training) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA (inactive duty for training) during which the individual concerned was disabled or died from injury incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). To establish status as a veteran based upon a period of ACDUTRA, a claimant must establish that he or she was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509 (2000). The fact that a claimant established status as a veteran for other periods of service does not obviate the need to establish that he or she is also a veteran for purposes of the period of ACDUTRA where the claim for benefits is based on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). Generally, no presumptions (including presumptions of soundness, aggravation, or presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless those periods are also active service periods. Paulson v. Brown, 7 Vet. App. 466, (1995). With respect to a claim for aggravation of a pre-existing condition during ACDUTRA or INACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during, and that the worsening was caused by, the period of ACDUTRA or INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010). Entitlement to service connection for a back disability and a neck disability. The Veteran essentially contends that he injured his low back and neck during a period of service in June 1981 with the PRARNG, and also contends that his low back pain, cervical pain, upper and lower extremity neuropathy, and circulatory problems began at that time. The Veteran is shown to have current back and neck disabilities. Specifically, private treatment records from Hospital Episcopal Cristo Redentor show that in March 2010, the Veteran was seen for lumbosacral and cervical pain, and it was noted that he had an "old accident L/S back strain in 1981". The diagnoses included cervical spine degenerative joint disease, and lumbar spine degenerative disc disease and degenerative joint disease. Moreover, on a VA examination in June 2016, the diagnoses included cervical degenerative spondylosis with anterior osteophytosis, narrowing of C5-C6 and C6-C7, discogenic disease, and degenerative disc disease of the lumbar spine. Because the Veteran's National Guard training duty was periodic, the onset of his back and neck conditions must be related to a specific period of active service or training duty (ACDUTRA or INACDUTRA). To that end, the Veteran contends his back and neck conditions had an onset during a period of service in June 1981, however, he has not specified the nature of this duty, nor has his duty status at that time been verified. In support of his claim, the Veteran submitted statements from fellow servicemembers L.E.C.D., J.R.M., and R.O.Y., who signed duplicate documents indicating they witnessed the Veteran injure his back on June 27, 1981, while moving equipment from cargo trucks to the barracks after returning from military exercises at Camp Santiago, and that the back injury was immediately reported to the Field First SSG, J.R., who instructed L.E.C.D. to drive the Veteran to the on base medical facility for treatment. Review of these statements, however, does not indicate the Veteran's duty status at that time in June 1981. Review of the claims file shows that there are service records (both medical and personnel records) missing from the Veteran's service in the PRARNG. The available service treatment records (STRs) from his National Guard service include an Individual Sick Slip (DD Form 689), dated June 27, 1981, in which the unit commander noted that the Veteran was being seen for low back pain. The medical officer noted a history of herniated disc intervertebral, L5-S1, and that after a squat exercise the Veteran developed sudden low back pain that radiated into the left buttock area, and he had limited range of motion in the left leg. The diagnosis was lumbosacral sprain. The plan was for a lumbosacral x-ray and he was put on light duty. He was to return in the morning on the 29th. A DD Form 689 dated June 29, 1981, signed by the unit commander, V.O.Y., showed that the Veteran was seen for back pain. In the section marked "in line of duty" the medical officer wrote "yes", and the disposition was that he continue with light duty. Further, on a DD Form 689 dated June 30, 1981, the unit commander, V.O.Y., noted that the Veteran was seen for "back pain follow up", which the medical officer noted to be a longstanding disc problem, for the past 7 years. The diagnosis was listed as acute recurrent back pain, and the disposition was that the Veteran was to go back to duty and take medication. Treatment notes (DD Form 640) indicate that on June 30, 1981, the Veteran was admitted to the ward by doctor's orders. He reported low back pain and that he was taking Robaxin. He was discharged several hours later, with medication, and it was noted he was feeling better and without complaints. He was sent back to the unit, and a call was to be made to the battalion commander for final disposition. Another medical record dated June 30, 1981, shows that the Veteran reported a 7 year history of low back pain and disc problem that was treated by a local doctor. He reported occasional lower back pain and an inability to work. It was noted that he reported low back pain since last Friday and a physical examination was conducted and no abnormalities were found. The assessment included rule out acute low back muscle strain, rule out disc problem, and rule out muscle sprain. A Report of Contact shows that the Veteran was contacted in September 2010; he stated he did not have any additional STRs from 1981, and that the only ones he had were already submitted. There are also a limited number of service personnel records in the record, including the Veteran's enlistment documents and the DD Form 214 for the period of active duty in 1961-1962. Leave and Earning Statements were obtained for the Veteran for his National Guard service from August 1976 to June 1982, and a pay statement from June 1981 indicated he received basic pay, but there is no indication as to his duty status during this period. In cases where the service records are unavailable, a heightened duty exists to assist in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). With regard to additional service personnel documents, the Board notes that the Regional Office (RO) has made multiple attempts to obtain such records. In September 2010, the RO made a formal finding of unavailability of National Guard Records for the period after February 1962, noting that efforts were made to obtain the Veteran's National Guard records from the Puerto Rico National Guard, but that a negative reply was received on August 18, 2010. In February, March, July, August, and September 2016, the RO made multiple requests for copies of the Veteran's service treatment records from the Adjutant General of Puerto Rico, Col. M.C., in an attempt to determine the Veteran's duty status for the period of June 1981. No response was received for these requests, and some letters were returned marked "return to sender". In September 2018, in response to the RO's letters, a support services assistant from the Puerto Rico National Guard (PRNG) indicated that the military record requested for the Veteran was not on file, and that they had verified with another Records Department of the PRNG and they had a negative response as well. In an April 2020 VA Request for Information (VA 21-3101), in response to the RO requesting complete STRs and personnel file for the Veteran, the NPRC responded that in December 2015, all available requested records were shipped to the contracted scan vendor for upload into the Veteran's electronic file. Based on the foregoing, the Board finds no indication that other available outstanding service records exist for the Veteran, and also finds further efforts to obtain such records would be futile. Thus, the duty to assist in this regard has been satisfied. While it is clear from the available service records and buddy statements that the Veteran was on some sort of duty status in June 1981, it is unclear as to what type of service this was. However, even assuming that the Veteran was on either a period of ACDUTRA or INACDUTRA in June 1981, the competent evidence of record does not support a grant of service connection. In that regard, when the Veteran was treated for low back pain in June 1981, it was noted that he had a history of herniated disc, L5-S1, also described as a longstanding disc problem for the past 7 years, and a 7 year history of low back pain and disc problems. Thus, it appears the Veteran had a herniated disc that pre-existed June 1981, however, he is not entitled to the presumption of soundness for this period of service (whether ACDUTRA or INACDUTRA), and in order to prove aggravation he would to need provide direct evidence both that a worsening of the condition occurred during, and that the worsening was caused by, the period of ACDUTRA or INACDUTRA. Review of the record shows that this has not been provided, and, moreover, the June 1981 service records show that the final assessment in June 1981 was equivocal as the examiner was unable to rule out acute low back muscle strain, disc problem, or muscle sprain. The Board recognizes the Veteran's competent contentions that he has back and neck pain related to an incident in June 1981 during his PRARNG service. There is, however, a threshold issue that has yet to be resolved because the status of this duty has not been verified. Additionally, while a VA examination was obtained in June 2016 regarding the etiology of the Veteran's claims, the Board notes that because the Veteran's duty status for the period in June 1981 has yet to be verified, an addendum medical opinion regarding whether he has current disabilities related to that period in June 1981 is not necessary or warranted. The preponderance of the evidence is therefore against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for a bilateral neurologic disability of the lower extremities, a bilateral neurologic disability of upper extremities, and a circulatory system disability. As noted above, the Veteran contends he has upper and lower extremity neuropathy and circulatory problems that began during a period of service in June 1981 with the PRARNG. Review of the record shows that the Veteran has not provided details regarding how these medical issues were incurred or how they are related to his reports of back and neck injuries at that time. Moreover, missing from the record is any competent evidence showing that the Veteran has current upper or lower extremity neuropathy, or circulatory problems that may be causally related to a period of qualifying active service. Additionally, as noted above, while the Veteran is competent to report any symptoms he experienced during the period of service in June 1981, there is a threshold issue that has yet to be resolved because the status of his June 1981 duty has not been verified. The preponderance of the evidence is therefore against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.